Posted
by
timothy
on Saturday October 08, 2011 @03:31PM
from the unter-dem-mikroskop dept.

First time accepted submitter lennier1 writes "The German hacker group CCC (Chaos Computer Club) has analyzed a piece of malware the German government uses in criminal investigations to spy on a suspect's computer. I'm sure we're all surprised that it's opening security holes for third parties, and violates a related court verdict (and several laws in general)."

The piece of incompetence that I find really striking is not so much the general shoddiness; but the fact that the malware is using a proxy setup in the US to avoid having its traffic traced back to the German police entity using it. Even if they know nothing about the tech side of things, surely exporting the evidence outside of the state, country, and EU, to some random datacenter in the US, would mean a hairy pile of privacy and chain-of-custody problems for the chaps in legal?

nope, as german law doesnt exclude illegaly obtained evidence from use in court.

Right, but that is appropriate. The USA is the only country I know of that does exclude evidence like that. In most jurisdictions, the aim (idealized, not always realized) of a court case is to uncover the truth of what happened. If the law was broken in the process of obtaining evidence, by all means prosecute the people who broke the law, but to exclude that evidence is a weird thing to do. At least, 90% of the planet thinks so...

The situation in the US is based on a rather bizarre interpretation of the constitution set by the supreme court, actually not so long ago, starting from around 1920. The Fourth Amendment of the constitution is the one about "no unreasonable searches and seizures", and requiring "probable cause". But it doesn't specify what the penalty should be if those rights are violated. In much of the rest of the world, the equivalent violation (eg, of police or some other person obtaining evidence illegally) opens the offender for prosecution but whatever evidence is obtained can still be used. That was the case in the USA before the early 20th century. But several court cases in the 20's and 30's established the "fruit of the poisonous tree" doctrine, in which evidence which was obtained illegally is not admissible in court. This has resulted in many farcical court cases where the facts of the case are well established, but can't be presented in court because the evidence was obtained illegally (in some cases, due to some technical omission). It also results in lots of arguments where opposing lawyers have a big bun fight, and make lots of money, arguing at length over whether a particular fact is allowed to be presented to the court or not.

It has also resulted in the attitude that cops who break the law are already "punished" by being unable to present the evidence in court (and often therefore unable to convict a criminal), and that this is sufficient punishment for the cop. Whereas in other jurisdictions the cop would lose their job, or end up in jail themselves, in the US they typically don't. This is an encouragement towards corrupt behavior.